264 Mo. 483 | Mo. | 1915
Action to establish resulting trust; to recover dower in real estate; and for an accounting. Defendants had judgment below and the plaintiff appeals..
The widow of said Thomas Griffin married one Alfred Barrell in 1888, and located in Los Angeles, California, where she has ever since resided. Mrs. Barrell testified that shortly after the death of her first husband, Thomas Griffin, she expended $60 for improvements on the lot in controversy.' She further testified that she then gave the title papers of the lot to her brother-in-law, William Griffin, with a request that he rent the property and look after it for her. William Griffin engaged one Donnelly to rént out the lot. In May, 1889, Donnelly turned the possession' of the lot over to Fred C. Hey, public administrator, together with $86.50 collected as rent. Mr. Hey, form: erly public administrator, testified that William Griffin was the only relative of Thomas Griffin living in Kansas City, his other collateral heirs residing in' the East. That said William Griffin was very friendly to the widow, Mrs. Barrell, and expressed a desire that she should have the lot. Said William Griffin was dead at the time of the trial.
The administrator, Mr. Hey, made final settlement of the estate of Thomas Griffin in August, 1891. Said settlement showed'that on July 1, 1891, he paid $100 of said rents to the widow, Mrs. Barrell: At the close of his administration he turned over the possession' of the lot to one George Kumpf, together with a balance in his hands, amounting to $66.08. The settlement indicates that he did not while administrator receive any
It does not appear that Kumpf had any lawful authority to assume control of the lot. He says he took charge of the lot and the $66.08 balance in the hands of the administrator because the administrator was in trouble and he (Kumpf) having signed his bond did not want him to get in any deeper. Mr. Kumpf continued to collect rents on the lot in controversy until about 1905 or 1906, when, upon the advice of his attorney, he paid such rent over to the “heirs of Thomas Griffin.” He did not know, or could not remember, who those heirs were, but understood that the amount he paid ($394) was needed to purchase or extinguish some tax claims outsanding against the property. Mr. Kumpf further testified that he was under the impression that one Almena A. Archer pretended to be agent for the Griffin heirs. Mrs. Archer was not sworn. The evidence indicates that for several years she rented the property from Kumpf, but there is nothing in the record by which her agency for the Griffin heirs or the widow of Griffin was satisfactorily proven.
Taxes were allowed to become delinquent on the property in controversy for the years 1899 and 1901, for which tax deeds were issued by the treasurer of Kansas City to one F. N. Phelps, dated November 11, 1903. A tax deed was also issued on October 27, 1903, by said treasurer of Kansas City, purporting to convey said property to the Standard Investment Company for taxes of the year 1898. On October 29, 1906, F. N. Phelps brought an ejectment suit against Mrs. Archer, as tenant of the lot in controversy, in which suit Mrs. Barrell, formerly the widow, and the unknown heirs of Thomas Griffin, were made parties defendant. In August, 1907, after the filing of the Phelps suit one A. N. Adams, an attorney of Kansas City,
After getting this contract of the collateral heirs, Mr. Adams made a deal with Phelps and the Standard Investment Company whereby they agreed to surrender their respective tax titles in consideration of $394 rent money collected by Mr. Kumpf. Upon receipt of this rent money Mr. Adams caused one-half of the tax titles to be conveyed to himself, and the remainder thereof to the collateral heirs of Thomas Griffin. He also received a deed from the collateral heirs purporting to convey to him one-half of their interests. A very short time before mating his contract with the collateral heirs of Thomas Griffin, attorney Adams wrote the following letter to Mrs. Barrell, formerly the widow of Thomas Griffin:
Aug. 9, 1907.
Mrs. Mary E. Barrell,
Los Angeles, California.
Dear Madam:
I have been informed that you are the widow of Thomas Griffin, deceased. As you probably know Thomas Griffin was the owner of Lot 1, Block 3, McGee Place, an addition in Kansas City, Missouri. I have been corresponding with the heirs of Thomas Griffin concerning this estate. They cannot give me any information of your whereabouts, but I find from the papers in the administration of the estate of Thomas Griffin that you were, at the time of final settlement, residing in (San Francisco) Los Angeles, California. This lot has been sold for taxes, and the purchaser at the tax sale is now endeavoring to perfect his title. By immediate action I think something can be saved for you as the widow, and for the heirs of Thomas Griffin.
Will you kindly write me at once upon receipt of this letter and let me know where you are and I will explain matter further. Very respectfully yours,
A. N. Adams.
To this letter Mrs. Barrell replied as follows:
*492 121 N. Avenue 24, Los Angeles, Cal.,
August 14, ’07.
Arthur N. Adams, Esq.,
Kansas City, Mo.
Dear Sir:
Yours of the 9th inst., rec. and contents noted. In reply . will say that I was the widow of Thos. Griffin and am well. aware of the fact that we did own the. lot you have described, in Kansas City, at 18th and Cherry street. Several years ago, when I married my present husband, it appears that Mr. Griffin’s folks got angry and tried to keep me from getting the place, so I gave it up and have not bothered about it any since. I thought if they needed it any worse than I did they could have it. Would be pleased to know what became of the place and how many of Mr. Griffin’s heirs are still looking for it. Awaiting your reply, I am, very respectfully,
Mary E. Barrell.
Mr. Adams claims, to have replied to Mrs. Barrell’s letter, but no copy of such a reply was introduced in evidence.
In April, 1909, one James EL Faris, representing the plaintiff (Belfast Investment Company), called upon Mr. Adams with a view of purchasing the land in controversy. Adams informed Mr. Faris of his deed from the collateral heirs, and likewise his deed from the holders of the tax titles, and offered to sell his interest to the.plaintiff company for $1500. Mr. Adams loaned Mr. Faris an abstract of title to the lot and called his attention to the fact that Mrs. Barrell had written a letter which he (Adams) had interpreted to mean that she disclaimed any interest in the lot in controversy. After holding the abstract some four hours Mr. Faris for the plaintiff company refused to accept Mr. Adams’s offer.
On- June 17, 1909, the plaintiff, through an agent, purchased all Mrs. Barrell’s title to the lot in controversy, paying therefor $700, and receiving a .quitclaim deed.
Thereafter, on September 7, 1910, the plaintiff instituted this action against A. N. Adams and his codefendants, such codefendants being the collateral heirs of Thomas Griffin, deceased.
The answer, in addition to a general denial, pleaded the ten-year Statute of Limitation. The answer also set up certain alleged equitable defenses, which, for the purposes of this opinion, it is not necessary to describe here.
Such other facts as may be found necessary to make clear the issues in this cause will be recited in connection with our conclusions.
I. Mrs. Barrell, testifying for plaintiff, stated that the lot in controversy was purchased shortly after' her marriage to Thomas Griffin, and that ****si16 contributed part of the purchase money, but she does not say how much. As a matter of fact the deed to Thomas Griffin shows that the lot was purchased several years before her marriage to him. The evidence entirely fails to sustain plaintiff’s claim of a resulting trust, and the plaintiff seems to concede this fact in its brief by resting its case entirely upon the theory that it acquired the dower of Mrs. Barrell, which, under section 4514, Revised Statutes 1889, now section 346, Revised Statutes 1909, she
II. If the plaintiff is entitled to recover at all in this case snch recovery must be based upon the dower right transferred to it by Mrs. Barrell. If that right is barred by the Statute of Limitation specifically applicable to actions for the recovery of dower in real estate, then the judgment for defendants must be affirmed.
It is apparent that the possession of the administrator Mr. Hey was not adverse to the widow, because he paid to her a part of the rents collected from the property in controversy.
The possession of Mr. Kumpf, which began at the close of the administration in 1891, and continued for fifteen years, seems not to have been friendly to the widow, Mrs. Barrell, because he never paid to her any rents and never agreed to do so. Neither did she even demand of Mr. Kumpf the possession of the property, or that he account to her for rents collected.
Whatever may have inspired Mr. Kumpf to take possession and collect rents, there is nothing to indicate that he was an agent or tenant of the widow. That fact is evidenced by the letter of Mrs. Barrell bearing date of August 14, 1907, in which she says she gave up the property because of the unfriendly attitude of Mr. Griffin’s “folks.”
It is, however, contended by appellant that as the widow had remarried in 1891 when Mr. Kumpf entered into possession she was under the disability of coverture, and could not be barred by the ten-year Statute of Limitation applicable to actions to recover dower. This issue calls for a most careful consideration of the statute fixing the date within which actions for the recovery of dower may be instituted. [Sec. 391, R. S. 1909.] This statute seems to have received a desultory consideration in the cases of Harrison v. Mcliey
Section 391, Revised Statutes 1909, was first enacted in the year 1887, under the title of “An Act limiting the time for the institution of suits for dower in real estate,” and, as first enacted, read as follows:
“Section 1. All actions for the recovery of dower in real estate, which shall not he commenced within ten years from and after this act takes effect, or within ten years after the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred: provided, however, that if any person entitled to bring an action for the recovery of dower at the time this act takes effect be under legad disability to bring such action, such person may bring such action after the time herein limited and within three years' after such disability is removed: provided, further, that the limitation in this act specified shald not be deemed to apply in any case where the widow is in possession of, and enjoying the mansion house of her husband as specified in section 2205, Revised Statutes of the State of Missouri of 1879, until she shall have been evicted therefrom.” [Laws 1887, p. 177.]
At the revising session of 1889 the foregoing section was amended by a revised bill, and all those provisions quoted in italics were eliminated, leaving the section in the form which it has ever since appeared in our statutes. [Sec. 4558, R. S. 1889; Sec. 2979, R. S. 1899; and Sec. 391, R. S. 1909.]
There seems to be no doubt that it was the legislative intent to repeal those provisions of the original act suspending its operation in favor of parties under legal disabilities, and possibly as to widows occupying the mansion houses of their husbands.
So much of the original act as appears in the revised bill was taken from the Act of 1887. This is
The nsnal rule is that when part of a former act is repeated in an amendatory statute, the provisions thus repeated are considered as a continuation of the former law, and not as a new enactment; while those parts of the original act which are omitted from the amendment are treated as repealed. This rule is announced by Lewis-Sutherland in the second edition of his work on Statutory Construction, vol. 1, pp. 442-3, as follows:
“The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act.”
See also 36 Oyc. 1082. This rule seems to have met with statutory recognition in this State. [Sec. 6606, R. S. 1889; Sec. 8086, R. S. 1909. See also State ex rel. Craig v. Woodson, 128 Mo. 497, l. c. 512.]
However, whether the limitation on suits to recover dower be considered as a continuation of part of the Act of 1887 or a new enactment in the revised bill of 1889, we find that the plaintiff cannot successfully assert the coverture of Mrs. Barrell as a defense to her failure to bring suit for her dower, for two reasons :
(1) The dower Statute of Limitation is not a part of the general law applicable to the limitations of real actions (Art. 8, chap. 21, R. S. 1909), and, therefore, cannot be construed in pari materia with such general law.
The rule is that when a Statute of Limitation stands alone and makes no exceptions as to its pro
Statutes of Limitation are looked upon with favor, because they tend to promote public peace and to prevent the litigation of stale and abandoned claims. Tyler in his work on Ejectment, p. 928, gives the rule for construing this class of statutes in the following language:
“Another well-settled proposition in respect to the running of the.Statute of Limitations is, that the statute will run against all persons, and no exception to the statute can be claimed, unless it is expressly mentioned in such statute. ‘ General words of a statute, it is considered, must receive a general construction; and, unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment.’ [Citing authorities.] And the doctrine of the authorities very clearly is, that Statutes of Limitation are to be strictly construed; and where the statute makes no exception, the court can make none on the ground of any inherent equity, or because it may appear to be reasonable that the statute should not run against any party in a given case. ’ ’
(2) Having first enacted the statute limiting the time for instituting suits to recover dower with a saving clause or exception in favor of persons who were or might be under legal disability to sue, and subsequently. having eliminated that saving clause in the revised bill (as before quoted), the legislative design to repeal such disability clause is clearly demonstrated. The fact that disability to bring an action to recover dower was more likely to result from coverture (a re
We are not unmindful of the fact that the conclusion we have reached is out of harmony with’ those prior decisions of this court which held that limitation would not run against dower prior to the assignment thereof. [Johns v. Fenton, 88 Mo. 64; Holmes v. Kring, 93 Mo. 452.] However, the provisions of the special Statute of Limitation relating to dower enacted in 1887 (if then in force) was not considered by the court when the case last cited was decided.
. The right to dower does not attach to any particular part of a tract of land until it is assigned. It is in a sense an encumbrance upon all the land to which the husband died seized. The Legislature may have deemed it for the public good that land should not be rendered unsalable by such an outstanding claim for an indefinite time-, and therefore wished to compel parties having such undivided possessory rights to assert them within ten years. At any event, it is our duty to obey and enforce all valid laws as they are written, and not as we think they ought to have been written. [State ex rel. Gray v. Wilder, 206 Mo. 541, l. c. 549.]
It seems to be contended by appellant that the dower Statute of Limitation cannot apply to the title which it purchased from Mrs. Barrell, because her husband was dead before the year 1887 when this law was enacted. We do not think this point presents any difficulty. The chief purpose of the statute was to compel widows to institute suits to have their dowers assigned within ten years. As the statute operated
III. Appellant contends that if the possession of Kumpf was on behalf of the heirs of Thomas Griffin, deceased, then it was at no time adverse to the widow, because the heirs of Griffin and his widow were tenants in common. In Robinson v. Ware, 94 Mo. l. c. 687, there is a quotation from Kent which tends to support the theory that a widow possessed of an unassigned dower right is a tenant in common with the heirs of her deceased husband. That quotation seems to be directly in conflict with the prior announcement of this court .in the case of McClanahan v. Porter, 10 Mo. 746, l. c. 751. We think the rule announced in McClanahan v. Porter is correct. The possession of a dowress is not adverse to the heirs. She has only a life-estate, and her possession passes to the heirs as remaindermen at her death. It is not so when the situation is reversed. If the heirs exclusively occupy land to which the widow is entitled to dower and refuse to attorn to her any rents, then their possession becomes adverse to her and she cannot be considered as a tenant in common with them.
It will be observed that section 391, Bevised Statutes 1909, does not make adverse possession a necessary incident to the duty of the widow to bring her action to recover dower within ten years after the death of her husband. It seems to be her unconditional duty to bring the action within ten years if she intends to bring it at all.
The fact that in the statute as originally enacted there were saving clauses in favor of the widow if she was in possession of the mansion house or under legal disability, and that these several clauses were stricken out in the revision of 1889, strongly indicates a legislative purpose that there should be no exception at all to the operation of this statute.
Whether it would be within the constitutional power of the General Assembly to penalize a, widow by barring her dower because she fails to bring suit for her dower in land which is already in her exclusive possession, and whether or not the heirs might be estopped from setting up the Statute of Limitation after they have acquisced in the exclusive possession of the widow, are matters not before us on the record in
We do hold on the facts in this case that, being out of possession and with knowledge on her part that at least some of the collateral heirs were disputing her right to the property (as she admits in her letter to Adams, and in her testimony), it became the duty of Mrs. Barrell to institute her suit to recover her dower in the property in controversy within ten years after the close of the administration in 1891, and having failed to do so both she and the plaintiff as the assignee of her claims are barred.
The conclusion we have reached renders unnecessary a consideration of the alleged equitable defenses pleaded by defendant. The judgment of the trial court is affirmed.
